Trademarks – Use not proved by registration alone

Dec 02, 2013

2 December, 2013

Intellectual
Property Appellate Board (India) has allowed rectification application of a
confectionary major in respect of various trademarks of another major,
concerning word ‘Eclairs’. In respect of three applications, the Board, noting
that the respondents had filed only registration certificates obtained in
various countries, held that just registration alone will not help the
respondents to prove their use when there is not a single evidence to show or
prove user. It noted precedent decisions wherein it was held that if the
respondent does not rebut the ground of non-user, it is proved that they have
not used the mark even after several years of registration and the mark shall
be cancelled for non-user.

In
respect of another rectification application, ground of non-user, for a period
of 5 years and 3 months, was not accepted as the mark was registered in the
year 2002 and the application for rectification was filed in the year 2005. [ITC
Limited v. Cadbury Schweppes Overseas Ltd. - IPAB Common Order No.
239/2013, dated 31-10-2013].